According to ERA Member Ryan, people can be sued for disparagement many years after leaving their job; it doesn’t even have to be defamation.
In January 2014 Hamilton City Council (HCC) dismissed property manager and union representative Allan Halse, after six years of service.
Halse had made Protected Disclosures including about this major costs blowout.
He raised a personal grievance claim for unjustified dismissal. Mediation took place soon after and the Council offered a payout that was sufficient to keep the matter out of the Employment Relations Authority (ERA). The Record of Settlement was dated 14 February 2014.
Any 62 year old whose dismissal for whistleblowing has been reported by mainstream media is not going to enjoy particularly good prospects in the job market. Realising this, Halse became a “necessity entrepreneur”, using his life savings to form a company CultureSafe NZ Ltd that continues to provide Halse with employment advocacy work, with a focus on workplace bullying.
CultureSafe has around 100 clients on its books at any given time. It appears that most end up agreeing to leave their jobs with an exit package negotiated by CultureSafe. Where mediations fail, claims may end up in the ERA.
Business is booming because workplace bullying appears to have fallen into a legislative gap. For example, WorkSafe have investigated workplace bullying complaints but have never prosecuted. It should not surprise anyone that many CultureSafe clients experience post-traumatic stress disorder (PTSD) and/or suicide ideation.
Employment advocates operate under legal privilege as lawyers do. Halse is also an anti-bullying activist which has made him the target of a cabal, and at least four past and present ERA Members have been roped in to rubber-stamp applications for penalties against him and his company. The latest of these was Member Ryan who fined Halse and CultureSafe $9,000 each for disparaging Hamilton City Council on social media. A bullied HCC employee had become a CultureSafe client.
As with two previous penalties (Turuki Healthcare and Rangiura Trust), Halse intends to apply for a Judicial Review, mostly into allegedly ultra vires ERA determinations.
This determination stands out for several reasons but to keep this article brief I’ll list only two:
Secret mediation
Paragraph 29 of the determination says:
I must find however, that the existence of the settlement agreement itself is caught by the confidentiality provision, and there is no real dispute that at least seven of the posts make specific reference to the settlement agreement...
Similarly, paragraph 66 says:
[The Council] is seeking to enforce the terms of the settlement at cl 1, namely, to keep confidential the existence of the settlement agreement itself, the content of the discussions in mediation resulting in the settlement agreement, and the terms of that settlement... (our emphasis in bold)
Given that Halse’s dismissal was reported by mainstream media, Clause 1 denied him the opportunity to save face and disclose that he was at least able to reach a confidential settlement with the Council and move on. That “existence” clause is in the nature of a superinjunction. P v Q (ITE v ALA) is another example from 2015 (para 21) that we’ve written about before.
Entire penalty payable to the Crown
While the proceedings were underway we thought the Council were aiming to claw back some of Halse’s 2014 settlement, however ancient the original employment dispute was. We’ll leave issues including the ERA’s jurisdiction over third parties for another article, but the ERA’s insidious overreach is embodied here in the quasi-criminal “fine” of $9,000 payable by CultureSafe to the Crown, both non-parties. Halse was also ordered to pay a $9,000 fine to the Crown.
There are other points regarding the legality or otherwise of these contracts, but we’ll leave those for another article.
We did warn HCC that it risked making a spectacle of itself a year ago; indeed, Stuff recently reported that former CEO Richard Briggs had lost the job he was leaving HCC for. History will probably show Member Ryan’s wayward determination to be an example of why new legislation based on Australia’s Fair Work Commission is probably a good idea.
UPDATE, 18 March: A privacy breach has been alleged.